State v. Berrill

• Decision Date: 14 June 1996
• Docket Number: No. 23050,23050
• Citation: 474 S.E.2d 508,196 W.Va. 578
• Parties: , 112 Ed. Law Rep. 487 STATE of West Virginia, Plaintiff Below, Appellee, v. Thomas BERRILL, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 508

474 S.E.2d 508

196 W.Va. 578, 112 Ed. Law Rep. 487

STATE of West Virginia, Plaintiff Below, Appellee, v. Thomas BERRILL, Defendant Below, Appellant.

No. 23050.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 27, 1996.

Decided June 14, 1996.

[196 W.Va. 579] Syllabus by the Court

1. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

3. Because W.Va.Code § 61-6-19 creates an offense without reference to speech, or the content thereof, it is a simple time, place, or manner restriction on the right to petition and freedom of speech, a restriction which is wholly neutral with respect to the content of the restricted speech.

4. Neither the First Amendment to the Constitution of the United States nor Article III, §§ 7 and 16 of the West Virginia Constitution preclude prosecution under the W.Va.Code § 61-6-22.

5. Where no objection to the denial of allocution was made at trial, the error is subject to review for plain error.

6. In the circuit and magistrate courts of this state, the judge or magistrate shall, sua sponte, afford to any person about to be sentenced the right of allocution before passing sentence.

Scott E. Johnson, Assistant Attorney General, Charleston, for Appellee.

F. John Oshoway, Grantsville, for Appellant.

Robert J. O'Brien, Buckhannon, for Amicus Curiae, West Virginia Civil Liberties Union.

ALBRIGHT, Justice.

This appeal is from an order of the Circuit Court of Calhoun County, which denied defendant's petition appealing magistrate court jury convictions of disrupting a public meeting in violation of W.Va.Code § 61-6-19 and wearing a mask in public in violation of W.Va.Code § 61-6-22. Appellant, defendant below, first argues that W.Va.Code §§ 61-6-19 and 61-6-22 were unconstitutionally applied to him, in violation of his rights to petition and to freedom of speech under the First Amendment of the United States Constitution and Article III, §§ 7 and 16 of the West Virginia Constitution. Additionally, appellant argues that he was denied the right to allocution. We find that W.Va.Code §§ 61-6-19 and 61-6-22 were constitutionally applied to appellant and, therefore, affirm the convictions. However, we agree that appellant was denied his right to allocution and reverse and remand the matter to the circuit court, with directions to resentence the appellant after first according him his right of allocution and considering any allocution offered.

The facts are not disputed. In an effort to convince the Calhoun County Board of Education (Board) to change the Calhoun County High School red devil mascot ¹, Thomas Berrill, appellant, went to a Calhoun County Board meeting dressed in a devil costume. The costume included a mask that covered his face. Prior to the meeting, Mr. Berrill called the Board and asked to be placed on the meeting agenda under the fictitious name of "Mr. DeVille". He did not inform the Board of his true identity nor of his plan to Appellant was charged in the Magistrate Court of Calhoun County with one count of violating W. Va.Code § 61-6-19 (hereinafter "the anti-disruption statute") ² for wilfully disrupting a public meeting and one count of violating W. Va.Code § 61-6-22 (hereinafter "the anti-mask statute") ³ for wearing a mask in a public building. During trial, witnesses for the State who were present at the meeting testified that they were frightened during the incident, essentially because they did not know what was happening, who defendant was, or whether he would become violent. The witnesses also stated that they were concerned for the safety of the children who were present at the meeting. In addition, one witness testified that she first saw Mr. Berrill without his mask, when he came to the door of the room where the meeting was being held and asked whether he was at the meeting place for the Board. The witness stated that she did not know Mr. Berrill, but when he returned dressed as a devil she Mr. Berrill was found guilty of both charges by a petit jury in the magistrate court. Immediately after dismissing the jury, without making inquiry of defendant whether he wished to speak, the magistrate sentenced defendant to ninety days in jail on each charge, to be served concurrently. Mr. Berrill was also fined $100 for disrupting the meeting and $200 for wearing the mask. After the magistrate imposed the sentence, there was an exchange between the court and counsel regarding Mr. Berrill's bond and a stay of execution of the sentence pending appeal. Mr. Berrill then asked to address the court. Defense counsel stated, "we're finished." The court instructed Mr. Berrill to be seated. Mr. Berrill made additional attempts to speak and was removed from the court. By order dated November 18, 1994, the Circuit Court of Calhoun County denied Mr. Berrill's subsequent petition for appeal and found that W.Va.Code §§ 61-6-19 and 61-6-22(3) had been constitutionally applied to him.

[196 W.Va. 580] dress in a devil costume. The meeting was held at the Board office, which is owned by the Board, in a room that had only one means of exit, an interior door leading to another part of the building. Although the agenda for the Board meeting provided a time for public questions and comments, Mr. Berrill did not await that opportunity. Rather, when Mr. Berrill entered the meeting, he took advantage of a pause in the proceedings, a short period of silence, to begin his conduct and remarks. The evidence discloses that Mr. Berrill moved or "pranced" about the room and began to speak although he was not called on by the moderator to do so. Mr. Berrill then addressed the gathering for a period estimated by witnesses to range from one-and-a-half to ten minutes, during which time the regular business of the meeting came to a halt. Although Mr. Berrill used no threatening words and had no physical contact with anyone at the meeting, he ignored instructions to take a seat or leave and was at least twice called out of order by the moderator. In his statement to the assembly, Mr. Berrill represented that he was the red devil and thanked the Board for keeping the devil in the schools and keeping God out. Mr. Berrill departed from the meeting room only when the Board president stood up and moved toward Mr. Berrill. [196 W.Va. 581] recognized his clothing and thus knew it was the same man that had previously appeared at the door. Another witness testified that he suspected the man dressed as a devil was Mr. Berrill, because Mr. Berrill had previously addressed the Board regarding the red devil mascot. ⁴

STANDARD OF REVIEW

As noted, appellant claims that the statutes under which he was convicted were unconstitutionally applied to him. The facts of this case are not disputed. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

We are also asked to review the trial court's error in failing to provide the right to allocution when defense counsel did not object to the denial. Accordingly, the question before us is whether the denial of allocution constitutes plain error. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

RIGHT TO PETITION AND FREEDOM OF SPEECH

Mr. Berrill, appellant and defendant below, challenges his conviction on the grounds that it violates his right to petition for a redress of grievances and his right to freedom of speech as provided under the First Amendment to the United States Constitution, and Article III, §§ 7 and 16 of the West Virginia Constitution.

"Although the right to petition and the right to free speech are separate guarantees, they are related and generally subject to the same constitutional analysis." Wayte v. United States, 470 U.S. 598, 610 n. 11, 105 S.Ct. 1524, 1532 n. 11, 84 L.Ed.2d 547, 558 (1985). Therefore, we will analyze Mr. Berrill's constitutional claims together.

In advancing his arguments on the issue of the right to petition the government for redress of grievances, Mr. Berrill argues that his activity was peaceful conduct directed at communicating a grievance to government. He asserts that petitions to government, particularly in the case of perceived grievances, will involve controversy and passion, and thus his disruption of the meeting was part of the process of government. He also contends that, in case of controversy, it is to be expected that speakers and spectators on both sides of an issue will appear and participate. He states that "applause for favored speakers and hoots for the opponents, perhaps even a few angry words, are all considered" de rigueur. Finally, he asserts that the line drawn by the Federal and State Constitutions is at violence and the real threat of violence, not comfort or subjective alarm. Mr. Berrill concludes that because he In further support of the argument that his right to petition was violated, appellant relies on Webb v. Fury, 167 W.Va. 434, 282 S.E.2d 28 (1981), overruled by Harris v. Adkins, 189 W.Va. 465, 432 S.E.2d 549 (1993) (holding that right to petition does not provide an absolute privilege for intentional and reckless...